Solitary confinement is a form of imprisonment in which a prisoner is isolated from any human contact, though often with the exception of members of prison staff. It is sometimes employed as a form of punishment beyond incarceration for a prisoner and has been cited as an additional measure of protection for the inmate. This form of punishment is also given for violations of prison regulations. It is also used as a form of protective custody and to implement a suicide watch.

Solitary confinement is colloquially referred to in American English as "the hotbox", "the hole", "lockdown", "punk city", "SCU" (Solitary Confinement Unit), "AdSeg" (Administrative Segregation), the "SHU" (pronounced "shoe")—an acronym for "special housing unit" or "security housing unit", or "the pound"; and in British English as "the block" or "the cooler".[1][2] In Canada they are known as a Special Handling Unit.

History[edit]

The penal system in the United States developed under two separate systems known as the Auburn and Pennsylvania methods.[3] The current system of solitary confinement was derived originally from the Pennsylvania model which was characterized by "isolation and seclusion." [3] Evidence has shown that Quakers and Calvinists supported solitary confinement as an alternative form of punishment. At the time it was meant to provide a prisoner with solitude “to reflect on his misdeeds” and restore his relationship with God.[3][4] Solitary confinement was intended as an alternative to public floggings which were common at the time. In 1818, New York reformer and Friend, Thomas Eddy, lobbied for inmate labor and solitary confinement in place of other forms of punishment such as hanging. Shortly after, New York decided to include solitary confinement and inmate labor into their penal system.[5]

Historical controversy[edit]

Research surrounding possible psychological and physiological effects of solitary confinement date back to the 1860s. Prison records from the Denmark institute during 1870-1920 illustrate that staff noticed inmates were exhibiting signs of mental illnesses while in isolation, revealing that this persistent problem has been around for decades.[6] The first comment by the Supreme Court of the United States about solitary confinement's effect on prisoner mental status was made in 1890 (In re Medley 134 U.S. 160).[3] In it the court found that the use of solitary confinement produced reduced mental and physical capabilities.[3]

Use[edit]

The practice is used when a prisoner is considered dangerous to oneself or to others, is suspected of organizing or being engaged in illegal activities outside of the prison, or, as in the case of a prisoner such as a pedophile or witness, is at a high risk of being harmed by another inmate or inmates.[citation needed] The latter example is a form of protective custody. Solitary confinement is also the norm in Supermax prisons where prisoners who are deemed dangerous or of high risk are held.

Prisoners spend 23 hours a day behind a solid steel door, with limited to no human contact, phone calls are infrequent and family visits, especially non-contact visits, are even rarer, in addition to inadequate medical and mental health treatment. Because solitary confinement means being in the cell for 23 hours a day, rehabilitation and educational program privileges are revoked.

Prisoners who are put into solitary confinement often suffer mentally as a result of sensory deprivations, permanent bright lighting, extreme temperature of hot and cold, and forced insomnia.

Juveniles[edit]

Juveniles are held in solitary confinement in jails and prisons across the United States, often for days, weeks, months, or even years in order to punish, protect, house, or treat some of the youth held there.[7] There is a lot of controversy surrounding the use of solitary confinement in cases of juveniles.

Rikers Island[edit]

The New York City Department of Corrections reported that in fiscal year 2012 more than 14.4 percent of all adolescents detained at Rikers Island between the ages of 16 and 18 were held in at least one period of solitary confinement while detained.[8] The average length of time young people spent in solitary confinement at Rikers Island was 43 days. More than 48 percent of adolescents at this institution have diagnosed mental health problems.[9]

Effects and access to care[edit]

The effects of solitary confinement on juveniles can be highly detrimental to their growth. The isolation of solitary confinement can cause anguish, provoke serious mental and physical health problems, and work against rehabilitation for juveniles.[10] Because young people are still developing, traumatic experiences like solitary confinement may have a profound effect on their chance to rehabilitate and grow.[7] Solitary confinement can worsen both short- and long-term psychological and physical problems or make it more likely that such problems will develop.[11] The ACLU and Human Rights Watch created a report that incorporated the testimony of some juvenile inmates. Many interviews described how their placement in solitary confinement exacerbated the stresses of being in jail or prison. Many spoke of harming themselves with staples or razors, having hallucinations, losing touch with reality, and having thoughts of or attempting suicide - all this while having very limited access to health care.[12]

Juveniles in solitary confinement are routinely denied access to treatment, services, and programming required to meet their medical, psychological, developmental, social, and rehabilitative needs.[13] The ACLU and the Human Rights Watch have made recommendations at both a State and Federal level regarding their lack of access to medical services etc.

Legality[edit]

The UN Special Rapporteur on Torture and other UN bodies have stated that the solitary confinement (physical and social isolation of 22–24 hours per day for 1 day or more) of young people under age 18, for any duration, constitutes cruel, inhumane, or degrading treatment.[14]

United Kingdom[edit]

Frances Crook, Chief Executive of the Howard League for Penal Reform, argues that violence, physical restraint, and isolation are dangerously prevalent in the British penal system for children.[15] In making this statement, Crook cites the death of Gareth Myatt, a 70 pound, 15 year old boy who was restrained by three officers while in custody.[15]

Human rights[edit]

In the UK, the state has a duty to “set the highest standards of care” when it limits the liberties of children.[15] Many believe, Frances Crook included, that incarceration and solitary confinement are the harshest forms of possible punishments and “should only be taken as a last resort.” [15] Additionally, because children are still mentally developing, incarceration should not encourage them to commit more violent crimes.[15]

Effects[edit]

The penal system has been cited as failing to protect juveniles in custody.[15] In the UK, “twenty- nine children have died in penal custody in 1990. Some 41% of the children in custody were officially designated as being vulnerable.”[15] This is attributed to the fact that isolation and physical restraint are being used as the first response to punish them for simple rule infractions.[15] Moreover, Frances Crook argues that these punitive policies not only violate their basic rights, but also leave the children mentally unstable and left with illnesses that are often ignored.[15] Overall, the solitary confinement of youth is considered to be counterproductive because the “restrictive environment…and intense regulation of children” aggravates them, instead of addressing the issue of rehabilitation.[15]

United States[edit]

In the US Federal Prison system, solitary confinement is known as the Special Housing Unit (SHU),[16] pronounced like "shoe" (/ˈʃuː/). California's prison system also uses the abbreviation SHU, but it stands for Security Housing Units.[17] In other states, it is known as the Special Management Unit (SMU).[18]

Current estimates of the number of inmates held in solitary confinement are difficult to determine, though generally the minimum held at any given time has been determined to be 20,000, with estimates as high as 80,000.[19]

The inmate held in solitary confinement for the longest time in U.S. federal prison is Thomas Silverstein, in solitary since 1983. He now resides in ADX Florence federal penitentiary in Colorado.[20][21]

Federal prisons[edit]

The use of SHUs within the Federal Bureau of Prisons is regulated under 28 C.F.R.541. When placed in the SHU, prisoners are either in "administrative detention status", a non-punitive status which removes you from the general population when necessary to ensure the safety, security, and orderly operation of correctional facilities, or protect the public, or "disciplinary segregation status", a punitive status imposed only by a Discipline Hearing Officer (DHO) as a sanction for committing prohibited acts.[24] There are more than 100 prohibited acts, all of which may result in solitary confinement, including unauthorized physical contact such as kissing, using abusive or obscene language, feigning illness, circulating a petition, insolence towards a staff member, engaging in or encouraging a group demonstration or protest, and participating in or encouraging a labor strike (also known as a prison strike), among others.[25]

California[edit]

When California opened its first "adjustment center", the goal was to return prisoners to the mainline prison population and ultimately to a society through an enrichment program of psychological and social services.[26] However, the plan was never executed. In 1983, George Deukemejian was elected as the California governor and during his time, he formed what was then the state’s newest prison – a massive, windowless “security housing unit” (SHU). SHU was intended to segregate over a thousand prisoners from the rest of the prison system through isolation. Deukemejian boasted that the Pelican Bay State Prison was a “state-of-the-art prison that will serve as a model for the rest of the nation...”.[26]

The prisoners are kept confined to their cells almost twenty-three hours a day and all forms of human contact through refined locking and monitoring systems are minimized. Pelican Bay SHU was one of the first visible “super-maximum security” facilities and thus it attracted lots of media attention.[26] Those opposing the conditions of California’s “supermax” resulted in the federal court criticizing certain features of the prison but left the basic regimen of segregation and isolation largely intact.[26]

One of the policies of supermax confinement among other policies is designed to increase punishment by removing gang members from the mainline population and subject them to solitary confinement, whether it is for a set amount of time or an indefinite duration. In a recent study, it noted that the California Department of corrections has implemented ways to fix their alleged gang problem, such as using ‘confidential informants,’ segregating gang members, intercepting gang communications, setting up task forces to monitor and track gang members, locking up gang leaders in high security prisons, and ‘locking down’ entire institutions.[26]

These facilities, supermax prisons, were originally designed to contain and control the worst criminals and those who did not adhere to the rules of prisons, aka “the worst of the worst”.[27] As of 2001, the count of inmates in administrative segregation in California was 5,982 representing an 80.2% change over time, but this number is not quite correct due to deficient files provided.[28] Increasingly, the practice of using solitary confinement long term, instead of the intended three-month period, in the supermax prisons as inmate management has become the norm.[27] The selected inmates, who wear jumpsuits that differentiate them from the general population, will spend around 23 hours a day alone in a cell where they are offered very little and fully monitored as is procedure at Pelican Bay State Prison which is one of the largest supermax prisons in the United States.[27] In order to be sent to Pelican Bay, the inmate has either committed murder, assault, riots, threatening staff or fellow inmates, and even gang affiliation which must be validated by the prison staff.[27]

There are 22 SHU units of Pelican Bay which include 132 eight-cell pods that are lit by heavy Plexiglass skylights enclosed by steel cell doors.[27] The inmates are provided with a concrete slab as a bed, a toilet, small shelf, and a concrete stool with no windows in an 80 sq. foot space.[27] SHU inmate are allotted for an hour and a half of exercise every day where they are taken to a 26 by 20 foot area surrounded by 20 foot high cement walls.[27] Only one prisoner from each pod can move at a time and will be placed in waist restraints for any medical/dental appointments to assist in the examination process and may also have leg restraints placed on them before they are able to leave the unit depending on the purpose of the appointment.[27] Pelican Bay control booths are situated in the center of the unit have multiple force options available the control booth officer. Those options include the mini 14 as the lethal option, 40mm launcher which utilizes an exact impact rounds or wood block round for less lethal applications of force and a mk46 oleoreisn capsicum spray, pepper spray.[27] The control booth officer operates 62 doors in the unit and the majority of the doors are opened multiple times throughout the day. There is a Plexiglass covering and a pegging system that helps prevent inadvertent door openings but they occasionally happen. If a door is inadvertently opened (frequently called a day room), allowing an inmate unrestrained access to another inmate or officer, the inmates may shake hands and return to their cells, or fight. If the inmates fight, the fight will not end until officers use force to stop the fight. No lethal force has been used against fighting inmates in the SHU. Inmate used to have only two options to leave the SHU. They needed to remain inactive for six years or debrief. There is currently a step down program available which gives inmates more freedoms and additional programs as they progress through the steps even if they chose not to debrief. Inmates who have made the decision to debrief, are placed into debriefing pods while the investigation into their claims are validated.[29] Once their claims have been validated, they are placed into the Transitional Housing Unit (THU) which is located in facility B building 3 (B-3). Those inmates in the THU are separated from the General Population inmates by staggering their yard times, visiting times, education and law library times.

In San Quentin State Prison, the violence rates were still high in the 1980s despite the similar lockdowns and procedures of Pelican Bay because these prisoners use the small windows out of lockdown to either harm themselves or others.[30] They typically will try not to harm themselves while in the psychiatric hospital ward either, but they will plan out while in lockdown until they can see their plan through.[30] However even as they near their release dates, they are moved to “prerelease programs” out of the SHU which are successful with some prisoners, but it causes most others to become even more uncontrollable and unpredictable due to their mental states that aren’t properly cared for or screened.[30]

In May 2012, California's prison system faced a lawsuit from the Center for Constitutional Rights and a group of California attorneys for the use of long terms of solitary confinement, some lasting for decades.[31]

In September 2014, easing some conditions for inmates in near-solitary confinement in California prisons has died in the state legislature. The bill was among others supposed to reform Security Housing Units rules to allow the inmates to keep photographs and make a phone call after three months of good behavior was listed as inactive on Friday after a decision on Thursday evening by state Senator Loni Hancock to drop it. [32]

Disciplinary segregation in New York[edit]

Since the 1980s, New York City Department of Correction have increased the use of segregation as a discipline and management tool. In effect, segregation is a secondary sentence imposed by the correctional facility, which is usually unrelated to the conviction for which the person is incarcerated for.[33] There are high rates of use of solitary confinement in New York when compared to other U.S. states. Within the New York prison system, solitary confinement is frequently imposed for nonviolent, “trivial prisoner offenses.” Usually the common misconception is that solitary confinement is a punishment of last resort, reserved for inmates who present a threat of violence or escape.[34] Inmates that are released from solitary confinement go through a “transitional unit” but failure in the program results in their return to solitary confinement. Overall, most of the inmates fail and return to solitary confinement.[35] New York has the highest rate of “disciplinary segregation” in the country, making solitary confinement a regular every day action among the prison. Although prisons nationwide have decreased use of solitary confinement, the New York City Department of Correction expanded its capacity by 27 percent in 2011 and another 44 percent in 2012, according to the NYC Jails Action Coalition. Although the DOC housed 1,000 more inmates in 1990 than it does today, its’ jails have more solitary cells now. Due to this the city is topping the charts of municipalities with a high rate of solitary confinement.[36] On any given day, there are about 4,500 men, women, and children in some form of isolated confinement in New York State prisons. This is not including New York City’s jails, which are run under a separate system, where those in solitary confinement reach close to 1,000 or more.[34]

A new bill was introduced by Councilman Danny Dromm would require the Department of Correction to post a monthly report on its website about punitive segregation. It would also require data on the number of people in punitive segregation, the length of time in this setting, the nature of the infractions, age, mental health, if they were prescribed medication or moved to a hospital, violence against others and inmate requests.[36] Many are supportive of this bill with the goal being to make jail facilities safer for inmates and correction officers.Individuals who are released and experience solitary confinement go back into their communities and reoffend at higher rates than general population prisoners causing them to land back into prison. Policy changes that will reduce the use and long-term impact of segregation will benefit not only the staff and prisoners in these units but also ultimately the well-being of facilities, systems, and the community.[33] Councilman Dromm also issued a separate resolution seeking to end the practice of the time owed. For example, an inmate, because of good behavior or other reasons, might only have served 100 of his or her 180-day sentence in solitary and then was released. A few years or even decades later the person is rearrested. Under current rules he or she must complete those unserved 80 days in solitary. This resolution however is only a request since the Council does not have the authority to make the Department of Correction adhere.[36]

United Kingdom[edit]

Solitary confinement as a disciplinary measure for prisoners in Europe was largely reduced or eliminated during the twentieth century.[37] In 2004, only 40 out of 75,000 inmates held in England and Wales were placed in solitary confinement cells.[38]

Secure housing units[edit]

Officially, the purpose of placing prisoners in secure housing units (SHUs) is to increase control over dangerous inmates. Some hope the SHU encourages prisoners to reflect on their actions. These units are characterized by extreme isolation of prisoners who “are housed in small cells with solid steel doors…for 22 to 23 hours per day.”[3] Inmates are also deprived of social interaction and denied access to educational or therapeutic programs and health care while being held in SHUs.[3]

Psychological effects[edit]

It has been shown that the conditions of these secure housing units have severe mental and psychological effects on prisoners.[3] Prisoners in SHUs are isolated for long periods of time. Instances of assault and torture against these prisoners in response to trivial things have also been cited.[3] The common justification by officials is that prisoners of certain natures deserve to be punished for the threat that they pose to society.[3] Pro-SHU members of the public have no sympathy for these prisoners. This can be attributed to the fear of increasing crime rates and therefore, support the government’s effort to enforce harsher forms of punishment.[3]

The most “notorious example of the extreme social isolation found in supermaximum custody units” is the SHU at Pelican Bay State Prison.[3] From studying conditions at Pelican Bay, researchers argue that long-term social isolation “carries major psychiatric risks.” [3] Prisoners are susceptible to developing mental illnesses because they are confined to coffin like conditions and denied access to basic health services.[3] Illnesses range from anxiety, clinical depression, and self-mutilation to suicidal thoughts and SHU syndrome.[3] Yet, it is important to note that the duration of the isolation is the most important factor in determining the effects of solitary confinement.[3]

Scrutiny[edit]

Supermax prisons, large-scale implementations of secure housing units, employ solitary confinement to isolate predatory, unorderly inmates from the rest of the prison community.[39] Federal Bureau of Prisons create special supermax facilities to contain the most aggressive inmates in a protective effort.[39] Kate King, professor and director of Criminal Justice at Murray State University, Benjamin Steiner, professor of Criminal Justice at the University of Cincinnati, and Stephanie Ritchie Breach, director of the Third District Youth Court, explain how while violence has always been a factor in prison life, the level of aggression is magnified in facilities where all such members of the prison system are concentrated.[39] These scholars argue that the violent nature of supermax prisons such as Pelican Bay State Prison are perpetrated by prison culture itself.[39] King, Steiner, and Breach question the effectiveness of these institutions and claim the violent reputation of American prisons stems from this departure from the treatment model.[39] Supermax prisons are also scrutinized on legal and ethical bases. Scholars Jesenia Pizarro and Vanja Stenius note that the overall constitutionality of these prisons are still quite unclear.[40] Many argue the conditions in which these inmates live do not meet the standards of the Eighth Amendment to the United States Constitution.[40]

Recidivism[edit]

Shira E. Gordon, a University of Michigan Law Student, argues that solitary confinement leads to an increase in recidivism and violence. To substantiate this conclusion, she cites two quantitative research based studies that support this nexus and counters those who argue that solitary confinement deters recidivism.[41] Daniel Mears and William Bales “compared recidivism rates by matching…prisoners who were incarcerated in solitary confinement with prisoners who had been in the general prison population.”[41] They found that “24.2 percent of the prisoners held in solitary confinement were reconvicted of a violent crime compared to 20.5 percent of prisoners held in general population.”[41] And this behavior may be attributed to the mental illnesses prisoners may develop, as well as the dehumanizing treatment they are subject to.[41]

Effects[edit]

Psychiatric[edit]

“Inmates in jails and prisons attempt to harm themselves in many ways, resulting in outcomes ranging from trivial to fatal.” [42] While some inmates are known to have psychiatric disorders prior to entering the prison, others develop mental disorders as a result of being placed in solitary confinement. A main issue within the prison system and solitary confinement is the high number of inmates who turn to self-harm[42] Studies have shown that the longer one stays in the prison, the more at risk he or she is to self-harm.

One study has shown that “inmates ever assigned to solitary confinement were 3.2 times as likely to commit an act of self-harm per 1000 days at some time during their incarceration as those never assigned to solitary.” [42] The study has concluded that there is a direct correlation between inmates who self-harm and inmates that are punished into solitary confinement. Many of the inmates look to self-harm as a way to “avoid the rigors of solitary confinement.” [42] Mental health professionals ran a series of tests that ultimately concluded that “self-harm and potentially fatal self-harm associated with solitary confinement was higher independent of mental illness status and age group.” [42]

Physicians have concluded that for those inmates who enter the prison already diagnosed with a mental illness, the punishment of solitary confinement is extremely dangerous in that the inmates are more susceptible to exacerbating the symptoms.[43] Professional organizations, like the National Commission on Correctional Health Care (NCCHC) and American Psychiatric Association (APA), work to improve the mental health services, however, the systems within the prisons “remain woefully inadequate.” [43] “Psychological effects can include anxiety, depression, anger, cognitive disturbances, perceptual distortions, obsessive thoughts, paranoia, and psychosis.” [43] These studies suggest that a main issue with isolating prisoners who are known to have mental illnesses is that it prevents the inmates from ever possibly recovering. Instead, many “mentally ill prisoners decompensate in isolation, requiring crisis care or psychiatric hospitalization.” [43]

Environment is a factor[edit]

‘Prisoner mental health is becoming increasingly important’, and has caught the attention of the World Health Organization, who aims to reduce the ‘effects of imprisonment on mental health.” One study focused on the ‘prison environment rather than on individual factors.’ [44] The study tested two time periods, short-term and long-term, that evaluated the ‘mental state changes in response to changes in the environment or prison setting.’ [44] It ultimately concluded that solitary confinement was ‘associated with negative effects on mental health.’ [44] Similar to solitary confinement, segregation on the other hand, could not be proven to have lasting negative effects on inmates although those who were segregated had a worse mental health than those who were not segregated.[44] The study also concluded that crowding, ‘increased levels of social density had negative effects on the mental health of inmates.” [44]

Social[edit]

Some sociologists argue that prisons create a unique social environment that do not allow inmates to create strong social ties outside or inside of prison life. Therefore, women are more likely to become depressed than men,[citation needed] because they do not feel supported by their respective families outside of prison. However, men are more likely to become frustrated, and therefore more mentally unstable when keeping up with family outside of prisons.[45] Extreme forms of solitary confinement and isolation can affect the larger society as a whole. The resocialization of newly released inmates who spent an unreasonable amount of time in solitary confinement and thus suffer from serious mental illnesses is a huge dilemma for society to face.[46]

Criticism[edit]

Ineffectiveness[edit]

In 2002, the Commission on Safety and Abuse in America, chaired by John Joseph Gibbons and Nicholas Katzenbach found that: "The increasing use of high-security segregation is counter-productive, often causing violence inside facilities and contributing to recidivism after release."[47]

Solitary confinement has been traditionally used as a behavioral reform of isolating prisoners physically, emotionally and mentally in order to control and change inmate behavior. Recently arrived inmates are more likely to violate prison rules than their inmate counterparts and thus are more likely to be put in solitary confinement. Additionally, individual attributes and environmental factors combine to increase an inmate's likelihood of being put into solitary confinement.[48]

Torture[edit]

Solitary confinement is considered to be a form of psychological torture[37] when the period of confinement is longer than a few weeks or is continued indefinitely.[49] The case of Thomas Silverstein has been somewhat criticized. Silverstein has spent the last 31 years of his imprisonment in solitary confinement as a result of him murdering a prison guard in Marion, Illinois. He is thought to have been in solitary confinement longer than any other prisoner in the world. Silverstein is currently incarcerated at the Federal Supermax Prison in Florence, Colorado. The International Red Cross has expressed concern of ‘significant problems’ with U.S. confinement techniques, and U.S. prison policies have faced mounting legal challenges.[50] America's detention system is far below the basic minimum standards for treatment of prisoners under international law.[50] The United States' increasingly harsh treatment of its civilian prison population in maximum-security prisons ("supermax facilities") nationwide has caused an international human rights concern.[50] America’s solitary confinement practices contravene international treaty law, violate established international norms, and do not represent sound policy.[50]

Negative psychological effects have been documented,[51] leading one judge in a 2001 suit to rule that "[Solitary confinement] units are virtual incubators of psychoses—seeding illness in otherwise healthy inmates and exacerbating illness in those already suffering from mental infirmities."[52]

Misuse[edit]

Misuse of solitary confinement has been widely controversial. In immigration detention centers, reports have surfaced concerning its use against detainees in order to keep those knowledgeable about their rights away from other detainees.[53] In the prison-industrial complex itself, reports of solitary confinement as punishment in work labor prisons have also summoned much criticism.[54] One issue prison reform activists have fought against is the use of Security Housing Units (extreme forms of solitary confinement). They argue that they do not rehabilitate inmates but rather serve only to cause inmates psychological harm.[55] Further reports of placing prisoners into solitary confinement based on sexual orientation, race and religion have been an ongoing but very contentious subject in the last century.[56]

Access to health care[edit]

Research has shown that the routine features of prison can make huge demands on limited coping resources. After prison many ex-convicts with mental illness do not receive adequate treatment for their mental health issues, because health services turn them away. This is caused by restrictive policies or lack of resources for treating the formerly incarcerated individual.[65] In a study focusing on women and adolescent men, those who had health insurance, received mental health services, or had a job were less likely to return to jail. However, very few of the 1,000 individuals in this study received support from mental health services.[66]

Ethical issues[edit]

Treating mentally ill patients by sentencing them into solitary confinement has captured the attention of “human rights experts” who conclude that “solitary confinement may amount to cruel, inhuman, or degrading treatment” that violates rights specifically targeting cruel, inhuman treatment.[43] Health care professionals and organizations recognize the fact that solitary confinement is not ethical, yet the segregating treatment fails to come to a halt.[43] “Experience demonstrates that prisons can operate safely and securely without putting inmates with mental illness in typical conditions of segregation.” [43] Despite this and medical professionals’ obligations, segregation policies have not changed because mental health clinics believe that “isolation is necessary for security reasons.” [43]

Legality[edit]

The legality of solitary confinement has been frequently challenged over the past sixty years as conceptions surrounding the practice have changed. Much of the legal discussion concerning solitary confinement has centered on whether or not it constitutes torture or cruel and unusual punishment. While international law has generally begun to discourage solitary confinement’s use in penal institutions,[67] opponents of solitary confinement have been less successful at challenging it within the United States legal system.

International law[edit]

Throughout the twentieth century, the United Nations' stance on solitary confinement has become increasingly oppositional. International law has reflected this change, and UN monitoring has led to a major reduction of solitary confinement.[67]

In 1949, the Universal Declaration of Human Rights (UDHR) was adopted by the United Nations General Assembly. Although the Declaration is non-binding, the basic human rights outlined within it have served as the foundation of customary international laws.[67] The relevance of the Declaration to solitary confinement is found in Article 5, which states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.[68] Thus, if solitary confinement is believed to constitute torture or cruel, inhuman or degrading punishment then the country practicing solitary confinement is violating the provisions set by the UDHR.

The International Covenant on Civil and Political Rights (ICCPR), effective 1976, reiterates the fifth article of the UDHR; Article 7 of the ICCPR identically states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.[69] Because the ICCPR is a legally binding agreement, any nation that is signatory to the covenant would be violating international law if it practiced torture or cruel, inhuman or degrading punishment.

At the time that the UDHR and ICCPR were adopted, solitary confinement was not yet believed to constitute torture or cruel, inhuman or degrading punishment.[67] Its practice, therefore, was not believed to violate international law. This changed, however, after the UN definition of torture was outlined in detail in the 1984 Convention Against Torture (CAT). Based on this definition, many members of the UN began to believe that solitary confinement’s detrimental psychological effects could, indeed, constitute cruel, inhuman, or degrading punishment if not torture.[67] In the years following the CAT, UN representatives “have publicly decried the use of solitary confinement as a violation of the CAT and ICCPR,” as well as the UDHR.[67]

In more recent years, UN representatives have strengthened their efforts to stop solitary confinement from being used world-wide.[67] The urgency with which representatives have undertaken these efforts is largely due to the UN Special Rapporteurs on Torture, Manfred Nowak and Juan Méndez.[67] Nowak and Méndez have both “repeatedly unequivocally stated that prolonged solitary confinement is cruel, inhuman or degrading treatment, and may amount to torture”.[67] Nowak and Méndez have been especially critical of long-term or prolonged solitary confinement, which they define as lasting fifteen days or more.[67] Their authority and explicit characterization of solitary confinement as cruel, inhuman, or degrading treatment has led the UN to include long-term to indefinite solitary confinement in the group of practices that violate the provisions outlined in the UDHR, ICCPR, and CAT. Solitary confinement lasting for a short period of time, however, is allowed under international law when used as a last resort, though Nowak, Mendez, and many other UN representatives believe that the practice should be abolished altogether.[67]

United States law[edit]

In the U.S., opponents of solitary confinement have argued (with varying success) that the practice violates prisoners’ Constitutional rights. Despite the long history of litigation over the practice, the Supreme Court has yet to definitively state whether or not solitary confinement is unconstitutional. The Supreme Court considered the constitutionality of long-term solitary confinement only once in the ‘‘Wilkinson v. Austin'’ case. In contrast to the Supreme Court’s inaction, lower courts of the U.S. have imposed constitutional limitations on the use of solitary confinement.[41] Despite such limitations, the federal courts have refused to find that solitary confinement is per se unconstitutional.[41] The U.S. has also effectively “insulated itself from any official sanction for international violations by not submitting to the jurisdiction” of committees that enforce the ICCPR or CAT.[67]

Eighth Amendment[edit]

Since solitary confinement has been designated as “cruel, inhuman, or degrading treatment” under international law, many lawyers have argued that it is also the kind of “cruel and unusual punishment” prohibited by the Eighth Amendment. Proving this to be the case, however, has been a difficult task for attorneys at every level of the court system.

In light of the serious, long-lasting psychological effects solitary confinement can have, inmates have argued that the mental injuries they suffer qualify as “cruel and unusual punishment.” Prison officials contend that placing inmates in prolonged solitary confinement is necessary for various reasons. Some of these reasons include separating violent prisoners from the general population, separating vulnerable inmates (such as juveniles) from others, and punishing those prisoners who attempt to cause riots or try to escape.[70] Prisoners argue, however, that the nature of these kinds of offenses does not justify the use of solitary confinement; in their eyes “there is simply no strong security need for the total social isolation that exists at some supermax prisons”.[70]

A large portion of the court cases addressing solitary confinement have approached the practice as a violation of Eighth Amendment rights. Courts have generally agreed that solitary confinement is, indeed, a violation of the Eighth Amendment for inmates with preexisting mental illness or juveniles.[70] However, the Supreme Court concluded that “while there was a risk of serious psychological injury to inmates, that risk was not of ‘sufficiently serious magnitude’ to find a ‘per se’ violation of the Eighth Amendment for ‘‘all’’ prisoners placed in long-term solitary confinement”.[70]

Showing that solitary confinement constitutes cruel and unusual punishment has proven difficult for inmates and their attorneys. The Supreme Court requires ‘extreme deprivations’ in order to have merits for a ‘conditions-of-confinement claim’ and courts have also held that inmates are only protected against “certain kinds of extreme deprivations” by the Eighth Amendment.[71] In ‘‘Farmer v. Brennan’’, the Supreme Court set two requirements that must be fulfilled in order to challenge solitary confinement as “cruel and unusual”.[71] First, prisoners must show that a “substantial risk of serious harm to inmates” and second, that the prison officials were “deliberately indifferent” to such risk.[71] To prove a prison official’s “deliberate indifference,” the prisoner must “show evidence that the official was ‘actually’ aware of a prisoner’s serious need and chose to ignore it”.[41] Since the psychological impact of solitary confinement is not believed to be “objectively” cruel and unusual within the U.S. legal system, and because it is difficult to establish that prison officials are “indifferent” to prisoner health and safety, inmates and attorneys alleging these two requirements have faced limited success.

The Prison Litigation Reform Act (PLRA) further complicates inmates’ ability to claim that solitary confinement’s psychological damage constitutes cruel and unusual punishment. Section 1997e(e) of the PLRA states that

no Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury

.[71] This demonstrates that the Eighth Amendment provides “greater protection” against physical injury than against mental pain.[71] Therefore, unless a prisoner can demonstrate physical injury as a result of solitary confinement, he or she is unable to recover damages for any “mental or emotional injury” the confinement causes. As a result, the Eighth Amendment has not always been proven to be the most effective approach to argue against the practice of solitary confinement.

Due process and the Fourteenth Amendment[edit]

Litigating against solitary confinement on the basis of the Fourteenth Amendment and due process is another less common strategy inmates have used. The Fourteenth Amendment limits the “types of prisoners” that can be placed in solitary confinement and the time the prisoners can be confined.[41] The due process clause within the Fourteenth Amendment also regulates solitary confinement in that prisoners must be given reviews before and during their placement in solitary confinement.[41] Court cases made on these bases do not necessarily address any “underlying problems” of solitary confinement, but they do call for increased monitoring, hearing, and reviews.[41]

Inmates who are placed in solitary confinement “must be accorded meaningful periodic review to ensure that segregation [solitary confinement] is not a ‘pretext for indefinite confinement’”.[70] As Jules Lobel, professor at the University of Pittsburgh School of Law, explains,

When a prisoner is placed in a supermax, the due process requirement of meaningful periodic review requires that his or her behavior be re-evaluated at regular intervals to determine whether supermax confinement is still warranted.

Lobel contends that the trend in U.S. supermax prisons is to not submit these reviews at all or to provide a review with a predetermined outcome to keep the prisoner in solitary confinement.[70] If this is indeed the case, then such inmates’ due process rights are violated.

In ‘‘Wilkinson v. Austin,’’ the Supreme Court held that, in addition to the due process right to meaningful review, prisoners also have a due process right to “a statement of the reasons why they were placed or retained at the supermax” so they can better understand how to behave in the future in order to be released from solitary confinement.[70] Lobel argues that this “implies that the officials must provide something more than a general statement that the prisoner is very dangerous”.[70] According to Lobel this is not what usually happens at supermax facilities, so the inmates’ due process rights are violated in this way as well.[70]

In recent circuit court cases, courts have ruled that solitary confinement of 305 days or more constitutes an “atypical and significant hardship” that implicates due process.[41]

Alternative litigation techniques[edit]

Recognizing that the amount of proof needed to show that solitary confinement violates prisoners’ rights “is simply too high to trigger constitutional protections,” attorneys have started to approach solitary confinement from a different angle. John F. Cockrell, a recent graduate from the University of Alabama School of Law, suggests that those who challenge solitary confinement do so in context of the Americans with Disabilities Act of 1990 (ADA).[71] Cockrell reasons that

When claims under the Eighth and Fourteenth Amendments fail, Title II [of the ADA] may offer an avenue to improve the provision of services to the mentally ill in prisons and solitary confinement, but ipso facto improving the conditions under which all inmates in solitary confinement live.

In the past few years, several internal committees and administrative bodies involved in the United States prison and legal systems have also begun to question solitary confinement’s legality. In June 2012, for example, the US Senate Judiciary Committee held its first hearing on solitary confinement.[67] Likewise, as of 2013, the US Bureau of Prisons has announced that it will conduct its first review of how solitary confinement is used in federal prisons.[67] Additionally, the US Department of Justice found multiple violations of the Constitution and ADA after investigating the use of solitary confinement for mentally ill inmates in two Pennsylvania prisons.[67] The US Immigration and Customs Enforcement Agency (ICE) has also revised segregation procedures for detainees.[67]

Mentally ill inmates and juveniles[edit]

Studies have illustrated that mentally ill inmates and juveniles are two groups more severely affected by solitary confinement than other prisoners. As such, the solitary confinement of mentally ill inmates and juveniles has been upheld as cruel and unusual in both international and US courts.

The UN has “expressly prohibit[ed] solitary confinement of juveniles and individuals with mental illness”.[67] The Convention on the Rights of Persons with Disabilities and Convention on the Rights of the Child have played major roles in establishing the UN’s position on solitary confinement of mentally ill inmates and juveniles respectively.

Within the US legal system, too, courts have held that the solitary confinement of the mentally ill is “cruel and unusual”.[67] In fact, David Fathi, Director of the American Civil Liberties Union’s National Prison Project, found that “every federal court that has considered claims by severely mentally ill prisoners held in solitary confinement has found this treatment unconstitutional”.[41] These court rulings are significant in light of the fact that more than half of the prisoners currently serving jail time in the US are mentally ill according to the US Bureau of Prisons.[67] Furthermore, approximately 30% or more of prisoners in solitary confinement are mentally ill.[67] These rulings have the potential to dramatically change how prisons deal with mentally ill inmates, as prison officials would no longer be able to “warehouse” “difficult” prisoners if they have a preexisting mental illness.[67] It should be noted, however, that these rulings do not guarantee that the mentally ill will not be put in solitary confinement; while they are considered a vulnerable group, these prisoners still have “limited” recourse to the Eighth Amendment.[71]

One landmark case, Madrid v. Gomez, challenged the conditions of the Security Housing Unit (SHU) in the Pelican Bay State Prison. The court ruled that the current conditions were not “per se violative of the Eighth Amendment” with respect to all inmates.[71] However, in regard to SHU’s isolation of the mentally ill and the conditions of their solitary confinement, the court found that the prison had violated the Eighth Amendment. Despite it being a landmark case, the rulings of the case have yet to set a trend among cases against other prison systems because SHU’s conditions were known to be more extreme and harsh than other supermax prisons.

Juveniles who are charged as adults and placed in adult prisons are usually put in protective custody, and often the conditions of protective custody are similar to those of solitary confinement.[41] Juvenile justice experts, social scientists, and national correctional standards all agree that solitary confinement is an “ineffective therapeutic tool” that is detrimental to juveniles who are still in an “uncertain, unformed state of social identity”.[41] Given that they are developing mentally and physically, some experts have suggested that “they are severely and permanently damaged by such conditions to a greater extent than adults”.[67]

Actions[edit]

The use of long-term solitary confinement, along with other grievances, has triggered organized resistance from prisoners and advocacy groups in the United States. Prisoners in California and elsewhere have launched hunger strikes, citing cruel and unusual uses of solitary confinement as a major reason. Hundreds of prisoners in the United States, acting through the Center for Human Rights and Constitutional Law, have in 2012 filed a petition against solitary confinement at the United Nations. The petition alleges that solitary confinement constitutes torture and should be addressed by the international community.[72]

The 2013 California prisoner hunger strike saw approximately 29,000 prisoners protesting conditions.[73] This state-wide hunger strike reaching 2/3 of California’s prisons began with the organizing of inmates at Pelican Bay State Prison. On July 11, 2011, prisoners at Pelican Bay State Prison began a hunger strike to “protest torturous conditions in the Security Housing Unit (SHU) there”…and to advocate for procedural and policy changes like the termination of the “debriefing process” which forces prisoners “to name themselves or others as gang members as a condition of access to food or release from isolation”.[74] Nearly 7,000 inmates throughout the California prison system stood in solidarity with these Pelican State Bay prisoners in 2011 by also refusing their food.[74] Also in solidarity with the 2011 Pelican Bay prisoners on strike is the Bay Area coalition of grassroots organizations known as the Prisoner Hunger Strike Solidarity coalition. This coalition has aided the prisoners in their strike by providing a legal support force for their negotiations with the California Department of Corrections and Rehabilitation (CDCR) and by creating and running a media based platform to raise support and awareness for the strikers and their demands among the general public.[74] The CDCR’s failure to meet the demands of the Pelican State Bay Prison hunger strikers in 2011 resulted in the aforementioned 2013 California prisoner hunger strike. Similar to the Pelican Bay State Prison hunger strike is the organizing of January 2011 in the supermax Ohio State Penitentiary, where prisoners Bomani Shakur, Siddique Abdullah Hasan, Jason Robb, and Namir Abdul Mateen began a hunger strike “to protest what they call their harsh mistreatment under solitary confinement”.[75] These prisoners decided to start rejecting their meals until they could be relocated from solitary confinement to death row where their treatment as prisoner would improve. Another example took place in Fall of 2010, when prisoners throughout Georgia’s prison system organized a strike in opposition to violations of the US Constitution 8th amendment protection against cruel and unusual punishment for minute infractions of rules.[76] Inmates throughout the state, in facilities like Rogers State Prison and Hays State Prison engaged in a “self-imposed lockdown” to incite action from the Georgia Department of Corrections in meeting their demands.[76] Similar to other prison strikes demanding systemic change in the policing and policies of prisons like the Pelican State Bay hunger strike, this self-imposed lockdown strike has reached “across multiple facilities and across racial and factional lines”.[76]

Solitary confinement has served as a site of inspiration for protest-organizing against its use in and outside of prisons and conversely, as a response tactic for prisons to react to the protest-organizing of its prisoners. In March 2014, authorities at the Northwest Detention Center in Washington relegated multiple detainees to solitary confinement units after their participation in protests for the improvement of conditions within the facility and in solidarity with activist organizing against deportation escalations outside of the facility.[77]

Organizing against the use of solitary confinement isn't limited to the work of prisoners subject to or at risk for this treatment. Community organizing outside of prisons has also occurred to shed light on the use of solitary confinement in prisons and work towards its abolition or highly refined use. Free and accessible journals like “Turning the Tide: Journal of Anti-Racist Action, Research, & Education” and web-based projects like solitarywatch.com and the Prisoner Hunger Strike Solidarity Coalition website also work to disseminate information about the use of solitary confinement in prisons and support actions to bring about the end of this practice in prisons.

Dr. Eisenman, an Art History professor and activist, who is involved in many “stop max” movements centered in Illinois, studies solitary confinement and explains its eventual decline.[78] Since the 1800s solitary confinement was practiced in the penitentiary systems and its implementation and popularity at various prisons grew throughout the centuries.[78] The practice of solitary confinement grew partly because of stigmatizing language used to refer to certain prisoners like ‘the worst of the worst,’ which became a form of “self-justifying the logic of torture”.[78] Yet, as the use of solitary confinement progressed, public discourse around solitary confinement transitioned from a legitimate form of punishment to torture.[78] Because many prisoners in solitary confinement suffered severe mental and physical illnesses, Eisenman describes that by the end of the nineteenth century “prisoner isolation and sensory deprivation were widely understood to be forms of torture”.[78] Therefore, human rights groups condemned the use of solitary confinement or ‘supermax’ systems, and national and local ‘stop max’ movements have initiated in America and worldwide to stop the use of solitary confinement.[78] There are many radical American organizations campaigning and advocating for prisoners' rights and against solitary confinement.[79]

Alternatives and reform[edit]

Possible alternatives[edit]

Scrutiny of supermax prisons and the institutionalization of solitary confinement is accompanied by suggestions for alternative methods. One alternative is to administer medical treatment for disorderly inmates who display signs of mental illness.[80] The Correction Department of New York City implemented plans to transfer mentally ill inmates to an internal facility for further help rather than solitary confinement in 2013.[80] Dora B. Schriro, correction commissioner, said that treatment would help turn a “one size fits all” policy into a program to promote success in jail and the outside world.[80] A second alternative is to deal with long-term inmates by promoting familial and social relationships through the encouragement of visitations which may help boost morale.[39] Carl Kummerlowe believes that familial counseling and support may be useful for inmates nearing the end of a long-term sentence that may otherwise exhibit signs of aggression.[39] This alternative would help inmates cope with extreme long term sentences in prisons such as those harbored in Pelican Bay.[39] A third alternative would involve regular reevaluation and accelerated transition of isolated inmates back to prison population to help curb long-term effects of solitary confinement.[39] These alternative methods suggest a more restorative justice approach to handling high-security offenders.

Recent reform[edit]

Many states such as Colorado, Mississippi, and Maine have implemented plans to reduce use of supermax prisons and solitary confinement and have begun to show signs of reform.[80] Joseph Ponte, Corrections Commissioner of Maine, cut supermax prison population by half.[80] Colorado has announced reforms to limit the use of solitary confinement in prisons following a study that showed significant levels of confinement and isolation in prisons.[80] Washington has also showed signs of decreased use of solitary confinement, low segregation of overall prison population, and emphasis on alternative methods.[80]

Counter-arguments[edit]

There have been studies that have shown no difference between inmates in solitary confinement and those in normal lockup. For example "Effect of Solitary Confinement on Prisoners" examines a study that compared twenty prison inmates that were put into isolation to twenty inmates from general population that were used as the controls. The subjects were tested immediately before and after being put into isolation and the results showed that although there was a slight difference in subjective feelings, there were no mental or psychomotor changes.[81] "Effect of Solitary Confinement on Prisoners" argues that the negative effects of solitary have often been overemphasized and that the reason these negative findings are often reported is due to the characteristic difference between those who end up in solitary confinement and those who do not.[81]

"Reactions and Attributes of Prisoners in Solitary Confinement," analyzes multiple studies conducted at different prisons throughout the United States. There was no difference found in the stress levels between the inmates inside of solitary confinement and those in general lockup according to this study.[82] Interviews were conducted that showed that inmates had a fear of the mental effects that solitary confinement would have, but that mental harm rarely occurred.[82] There was also no significant difference between the results of the CPI Scale between the control and the experimental group according to "Reactions and Attributes of Prisoners in Solitary Confinement."[82] This article proposes the idea that some inmates have inherent characteristics that allow them to better adapt to solitary confinement while others do not, similar to the ability to adapt to any new environment.[82] Furthermore, it showed that the majority of inmates adapted to solitary confinement within a few days finding ways to pass time such as sleeping, thinking about the future, and exercising.[82] This article argues that this study gives a better representation of the effects of solitary confinement as it claims the participants are average inmates in traditional solitary confinement conditions, rather than controlled experimental conditions. The conclusions drawn from this study include the argument of consistency; that in order to prove that solitary confinement is harmful to inmates, there needs to be some sort of consistent negative result and their findings do not match this.[82]

Proponents[edit]

Proponents of solitary confinement propound that solitary confinement can improve the safety of inmates and prison staff. Earlier justifications for solitary confinement in the mid 20th century included protection for a prisoner whose sexual orientation, religion, or race were far too different and seen as vulnerable to attack from fellow inmates.

^Graber, Jennifer (Fall 2008). ""When Friends Had the Management It Was Entirely Different": Quakers and Calvinists in the Making of New York Prison Discipline". Quaker History97 (2): 19–40. doi:10.1353/qkh.0.0011.

^ abcdeHaney, Craig; Mona Lynch (1997). "Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement". New York University Review of Law and Social Change23: 478–558.Check date values in: |accessdate= (help);|accessdate= requires |url= (help)

^ abAngela Browne, Alissa Cambier and Suzanne Agha. “Prisons Within Prisons: The Use of Segregation in the United States.” Federal Sentencing Reporter , Vol. 24, No. 1, Sentencing Within Sentencing (October 2011), pp. 46-49. Published by: University of California Press on behalf of the Vera Institute of Justice.

^ abcdefgh[Metzner, Jeffrey L., and Jamie Fellner. “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics”. Journal of the American Academy of Psychiatry and the Law 38 (2010): 104-108. Google Search. Web. 18 Mar. 2014.]

^Freudenberg, Nicholas; Daniels, Jessie, Crum, Martha, Perkins, Tiffany, Richie, Beth E. "Coming Home From Jail: The Social and Health Consequences of Community Reentry for Women, Male Adolescents, and Their Families and Communities". American Journal of Public Health95 (10): 1725–1736. doi:10.2105/AJPH.2004.056325.Cite uses deprecated parameters (help)

^ abcdefghijklmnopqrstuv[Conley, Anna. “Torture in US Jails and Prisons: An Analysis of Solitary Confinement Under International Law.” International Constitutional Law Journal 7.4 (2013): 415-453. HeinOnline. Web. 1 May 2014.]